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STATEMENT 

oh 



WITH 

A REPLV TO THE ARTICLE IN THE SIXTY-SIXTH NUMBER OF 
THE NORTH AMERICAN REVIEW, 



ON THE 



mspzav&f. Qf> SSI XNBIAZTfir 



&eto Hoik . 

< LAYTON & VAN NORDE.N, PRINTERS 
42 WiUuim-tlrtt: 



(S.'JO. 



REMOVAL OF THE INDIANS 



The relations of the aboriginal tribes within the limits of the 
. Union to the state and federal governments, form an anomaly in 
the history of the world. Not entirely independent, nor yet ac- 
knowledging any authority except of their councils and chiefs 
they exist as distinct communities, surrounded, but not amalga- 
mated with the whites ; their relations with them defined by 
treaties, but with no right of appeal in case of their infraction, 
and no security for their observance, except the good faith and 
sense of justice of the stronger party ; governed by their loci! 
customs, Which, however, are not recognised as laws by the people 
who claim sovereignty over the whole country ; with an acknow- 
ledged right to the territory they occupy, founded in prescription, 
and guarantied by numerous treaties, but without the right o 
disposing of it at pleasure ; recognising no civilized system 01 
jurisprudence, and legislating within their own limits only for 
their own people; their peculiar habits as a t li stintt class, ob 
viously modified by the influence of civilization, but leaving it 
still problematical, whether their existence as one of the species 
of the human race is not approaching its final termination — they 
present a subject well worthy the consideration of the philan- 
thropist, and from which the legislator and statesman cannot 
avert their attention, without assuming the most fearful responsi- 
bility. 

By the common consent of civilized nations, tlte aboriginal 
inhabitants of this continent were at an early period assumed to 
be dependent upon the sovereign who occupied it by the right 
of discovery. 

All interference with them by any other civilized power, was 
thus excluded; and the government, by virtue of its sovereign 
authority, prohibited or regulated all intercourse between them 
and its own citizens. They were thus reduced to a Mate ol de- 
pendency; but this, in some instances, as in the Anglo-American 
colonies, was done by acting indirectly upon the Indians, and 
by making only the white man amenable to punishment [for 
a violation of the laws regulating the intercourse with then* 



4 

Direct usurpation was thus avoided on the part of the civiii ■- 
led authorities; and though in some instances hostilities with the 
tribes, caused by the injustice and violence of the frontier set- 
tlers, have resulted in the conquest and occupation of Indian 
territory, the public faith, and the great principles of natural 
and national law, have been preserved inviolable, and substan- 
tial justice has been done to them. 

Even in the first settlement of the country, the right which 
the civilized man has to vacant territory was in no instance 
solely relied on. The imperfect right of the aborigines to the 
vacant wilderness was bargained for, and agreements were 
made, by which the consent of the chiefs was obtained for the 
occupation by the whites of certain territory. 

The history of the colonial settlements shows how generally 
this right was respected, and it may be safely asserted, that 
neither in the Anglo-American colonies or states was it ever 
pretended that the aboriginal had no title to the soil. The in- 
fluence of civilization, however, upon the natives, notwithstand- 
ing the earnest and zealous efforts of many benevolent men, 
was unfavourable. They yearly diminished in numbers. The 
Indian race, distinguished as it was for so many heroic and 
exalted qualities, seemed wasting away. The Pequot and 
Narraganset tribes had already ceased to exist ; and in a few 
more generations, unless some check could be interposed to 
the process of destruction, the sword, the pestilence, and the 
vices which they had acquired from the example of their ci- 
vilized neighbours, without adopting the social and political 
system which deprived those vices of their extirminating quali- 
ties, would have completed their work ; and the race would be 
numbered with those, whose language and customs only excite 
the curiosity of the antiquarian. The gradual recession 
of this extraordinary race from the advancing footsteps of 
civilization, and the disappearance of tribe after tribe from the 
continent, as it became occupied by civilized men, leaving only 
their monuments to indicate that they once had been, excited 
a melancholy interest in the public mind, even previous to the 
American revolution. The humane saw, that this process of 
extinction was every where a consequence of the contigui- 
ty of European settlements. As philanthropists, therefore, 
and as patriots, watchful over the national character, they were 
desirous to save the Indian from his impending fate, and to ele- 
vate him to the rank of civilized man. They felt this to be 
clue, not only to the savages and to their own character, but 
it was a just tribute to their ancestors, who had founded this 
empire of civilized humanity in the American wilderness, as an 
asylum from the oppression and injustice of the old world. 



Phey could nnt Itrar that their fathers should be reproached 

IS the merciless' extirpators of the aboriginal race. 

Upon the assumption of independence, this anxiety was in- 
creased by the greater responsibility which devolved upon 1 hem. 
as the sole arbiters of the future relation- that nnv to exist be- 
tween the civilized and christian states, established by their 
efforts and the ignorant and heathen tribes within their limits. 
While they anxiously sought to perpetuate and extend the 
American republic, the} were not unmindful of the untutored 
savages around them. Even at the commencement of their 
desperate coniliet. with the parent country — when their coast 
was assailed by her fleets, their territory occupied by her armies, 
and their frontier settlements threatened by the savages, who 
were regarded as a part of the means " placed by God and 
nature in her power," to reduce them to submission ; at this 
moment of impending peril, they forgot not their obligations 
towards the aboriginals, but deliberately adopted, as a part of 
their national policy, a plan to improve their condition. 

They exhorted them to stand aloof during the approaching 
conflict. An Indian department was organized, and placed 
under the direction of commissioners ; and in the same year 
that the declaration of independence received the sanction of 
Congress, resolutions were adopted, providing for the protec- 
tion and improvement of the condition of the aborigines, and 
recommending measures for the propagation of the gospel, and 
the introduction of the arts of civilized life among them. From 
that period, down to the adoption of the federal constitution, 
the efforts of congress were directed to establish peaceful and 
friendly relations between the United States and the Indian tribes, 
upon fair and moderate terms ; and upon the adoption of that 
instrument, this philanthropic policy was more fully developed, 
and carried into eflect with more enlarged views and extended 
means. Previous to that event, difficulties had grown out of 
the claims on the part of the state governments to participate 
in the care and establishment of our Indian relations. By the 
articles of confederation, congress was invested with the power 
" of regulating trade and managing all affairs with the Indians, 
not members of any of the states, provided the legislative rigln 
of any state within its own limits, be not infringed or viola- 
ted." These limitations on it- authority |>roved the source of 
much embarrassment under the old confederation. 

It was impossible to make any treaties w'uh Indian tribes 
which might not, in some event, be construed a- infringing or 
limiting the legislative right of the state within whose limit- 
they were situated. 

Collisions were also produced by the express limitation of 



this power lo Indians who were not members of the states, it 
was indeed easy to discriminate between the powerful southern 
and northwestern tribes, wiio claimed to be independent, and bv 
their number and courage afforded substantial evidence of the 
strength of their claim, and those feeble remnants that were found 
in the eastern and middle states, and the Indian reservations. 
These tribes, whose numbers seldom amounted to a hundred 
families, deprived of the power of sustaining themselves, par- 
tially civilized, and accustomed to depend upon the protection 
and humane care of the local authorities, were properly consi- 
dered as members of the states where they resided. Without 
any of the attributes cf independence — unable to protect them- 
selves from their neighbours, and even from themselves, it was 
humane and fit that those who were able should assume the 
power and responsibility of controlling and governing them. — 
They were not regarded as objects of the care of a govern- 
ment instituted for national purposes ; but formed a part of the 
several communities in whose bosom they dwelt, as the gipsies 
formerly constituted a part of the European slates. 

On the other hand, those tribes which did not come in con- 
tact with even the frontier settlements of the colonists, as natu- 
rally fell within the jurisdiction of the general government. 
They were independent in fact, under the government of their 
own chiefs and national councils ; and at the formation of our 
government, so far from claiming any authority over them, 
great solicitude was manifested, and great pains taken by the 
public authorities, to conciliate them, and to preserve their friend- 
ship and neutrality. 

Between these two classes there was a great distance, and 
the tribes that did not clearly fall within the one or the other, 
afforded ground for controversy between the continental con- 
gress and the state governments. 

The federal constitution was framed with full reference to this 
state of things. In the convention which framed that instru- 
ment, several efforts were ineffectual^ made to adjust these 
conflicting claims. 

At length the matter was arranged, by vesting the treaty- 
making power exclusively in the United States ; making these 
treaties the supreme law of the land ; and by omitting the proviso 
preventing congress from making any Indian regulations 
infringing the legislative right of any state within its own limits. 
The grant of unqualified authority to regulate commerce with 
the Indians, the exclusive right of repelling by force their hos- 
tile encroachments, and of making treaties with them, vested the 
whole power in the general government. 

fn pursuance of the authority thus granted, the venerable 



Washington and his eidightened cabinet proceeded to fulfil tbeii 
duties, both inwards the states and the Indian nations. Thej 
intended, if possible, to raise them to an equality with the whin s, 
and at all events to show to the world, in ease of their extinction, 

that the Aineriean government had no participation iii hastening 

that unhappy result. 

With this view, provisions were made regulatine; the Indian 

trade, and a deliberate scheme of policy adopted for their gra- 
dual improvement and civilization. Treaties were made with 
the principal tribes, defining the boundaries between their terri- 
tory and that belonging to the whites; and the United States 
agreed to furnish them with domestic animals, implements of 
husbandry, blacksmiths, and, in some instances, "suitable per- 
sons to teach them to make fences, cultivate the earth, and such 
of the domestic arts as are adapted to their situation." The 
object of these treaties cannot be misunderstood. It was an 
otter on the part of the national government to the aboriginal 
of civilization. It was a manifestation of one of the most glo- 
rious attributes of superior intelligence, and breathed the purest 
spirit of a religion, w hich proclaims peace on earth, good w ill 
among men. 

This offer was accepted on the part of the Indians. Amidst 
all the degradation which had attended their intercourse with 
the w hites, a portion of them had always manifested an earnest 
w ish to preserve their race from extinction, and to partake of the 
improvement of their civilized brethren. 

Upon this footing our relations stood at the commencement 
of the federal government. This government claimed sove- 
reignty over the whole territory as defined by the treaty of 1783. 
to the exclusion of all civ ilized powers ; but did not assume to 
exercise any of its rights over the Indian tribes, w hich existed a* 
distinct communities. Some of the tribes had so far diminished 
; in number, as to cease to be objects of national concern. Others. 
, though more numerous and still preserving their individuality 
i and peculiar laws, had formed relations with the state govern- 
ments, anterior to the adoption of the federal constitution, which 
in some measure removed them from the jurisdiction of the 
general government. Such were the Six Nations, three of 
whom, the Oneidas, the Onondae;as and the Cawigas, previou* 
to that period, had ceded their lands to the state of New -York, 
and accepted of a title to the parts reserved for their ow n use, a- 
Buhgiiantees of the >tate. 

At a later period, the Mohawks executed a similar cession. 
The Six Nations too, having long before put themselves undei 
the protection of the colonial government of New-York, as de- 
pendents and allies, the ord'marv rotations between the general 



government and tlie Indian tribes, were in some degree modified 
*o far as these nations were concerned. 

With the powerful Southern and North Western tribes, these 
relations, although peculiar and anomalous, were sufficiently 
well defined. 

The tribes were treated as distinct and independent, and the 
boundaries between their lands and those relinquished to the 
whites, were marked out by treaties. 

To these treaties, the president affixed his seal, and the consent 
of two thirds of the senate was required to ratify them, as if made 
with foreign powers. They then became, in the language of 
the constitution, the supreme law of the land. By these treaties, 
the Indians stipulated to enter into no compact with any other 
power ; that the United States should have the exclusive right 
of regulating their trade, and the law regulating the intercourse 
with the Indians operating upon our own citizens, in effect, placed 
them in a state of dependence upon the federal government, ex- 
cept in their domestic concerns and internal regulations. On the 
other hand, the United States solemnly guarantied to them their 
lands not ceded, and expressly put all American citizens settling 
thereon out of their protection, and subjected them to the juris- 
diction and laws of the Indians. 

Provisions were also made for the surrender of criminals, and 
for the punishment of crimes committed by citizens within the In- 
dian territory. 

There were other relations, growing out of the character of 
the parties to these compacts. While the United States exer- 
cised a modified sovereignty over the country, and possessed 
by treaty the exclusive right of pre-emption of the aboriginal 
title, the Indians occupied and cultivated portions of it as agri- 
culturalists, used the remainder for hunting grounds, and held 
the guaranty of the United States for the whole territory, them- 
selves and their posterity. 

It might possibly have been supposed that no efforts would 
avert the fate to which the original inhabitants of this continent 
seemed destined, and that these stipulations would prove nuga- 
tory. This supposition, however, is inconsistent with the general 
spirit of these treaties, and is scarcely reconcilable with good 
faith. By the tenor of nearly all of these treaties, the permanent 
occupation of their country within the defined limits, by the 
Indians, is contemplated by both parties ; and the United States 
generally stipulated to furnish them with agricultural imple- 
ments, to cause them to be instructed in the mechanic arts ; 
to endeavour to civilize them, and to render them a stationary 
people, depending for subsistence on the cultivation of the soil, 
tn establishing these relations, the white man was the lawgiver, 



0 



and the aboriginals acceded to these treaties because tiiej con- 
tided in the good faith and superior intelligence of the civilised 

party. The President of the lnited States w as (heir Boreal fa- 
ther, and the general government stood in the relation of an 
adviser and guardian* 

The Undefined rights whic h had before < \i-ted w ere now mo- 
dified and settled by treaties. The right which civilized man 
had to occupy vacant territory in the wilderness, to the exclu- 
sion of the savage, was now changed to an absolute right to 
the country within spec ified limits, while the claim of the abo- 
riginal to the territory where lie had hunted w as converted into 
a guarantied right to a certain portion of it, defined by metes 
and bounds. Previous to this guaranty, their right to a por- 
tion of the country w as such as could not he w holly taken aw a\ , 
even for the use of civilized man, without a violation of the 
great and immutable principles of morality and natural justice. 
So long as the wilderness is large enough for all, the right 
which civilized man has to occupy it must be confined to the 
vacant territory. It must be exercised so as not to unnecessarilv 
deprive the Indian of that portion of land necessary for his ac- 
commodation. 

To this territory his right is complete, and cannot be affected 
by any claims derived from the superiority of civilized man. 
But when this is converted by treaties into an absolute right, — 
when the Indians have been encouraged to relinquish their 
vagrant habits for those of agriculturists, and to attach them- 
selves to the soil, all this reasoning, drawn from the difference 
between barbarous and civilized communities, is at an end. — 
The Indians become possessed of a right to the soil, which thev 
may use in any manner they deem proper, subject only to the 
condition that if sold it must be sold to the United States. — 
Until they do that, they may appropriate it for farming, for pas- 
turage, or hunting ; they may even divide it among them 
selves, and become a civilized people ; and the federal govern- 
ment bound itself, and is still bound, by numerous treaties, to 
promote that desirable object. 

Such were the relations between the federal government and 
the Indian tribes, when, with the view of determining a con- 
troversy which had existed ever since the revolution, between 
Georgia and the rest of the Union, concerning the western 
boundary, an agreement was made in 1802 by commissioners 
representing both parties. By that agreement each party gave 
up a portion of its claim : the state of Georgia relinquishing 
its claim to the territory now forming the stales of Alabama 
and Mississippi, and the United States relinquishing its claim to 
the territory between the western boundarv of Georgia and 



10 



line drawn along the Appalachian ridge to tiie head oi the 
Ocmulgea, down that river to the great turn opposite Jackson- 
ville, and thence to the head of the St. Mary's. This portion 
comprehends all the Indian territory. The federal govern- 
ment also bound itself to extinguish the Indian title within the 
state ; but, mindful of its previous obligations towards the abo- 
rigines, this stipulation was limited by a proviso, "when it 
could be done peaceably and upon reasonable terms." 

This agreement did not modify the existing relations with 
the Indian tribes in that state in the least degree. They were 
not parties to the agreement, and have never assented to it.— 
The general government, however, in pursuance of these new 
obligations, proceeded, at its own expense, to extinguish, from 
time to time, the Indian title to such portions of their territory 
as they were willing to sell. In this manner about 15,000,000 
acres had been acquired by the state of Georgia previous to 
the year 1825. At the commencement of that year 9,537,000 
remained in the possession of the Indians, of which 5,292,000 
belonged to the Cherokees, and 4,245,000 to the Creeks. The 
state government had been pressing the general government for 
several years previous to that time, to complete the extinguish- 
ment of the aboriginal title, and the general government had 
vainly endeavoured to procure the assent of the Indians to the 
cession of any more land. 

They replied that they had no more than was wanted for 
lheir own use, and that they had resolved not to sell any more. 
The commissioners appointed to treat with the Creeks, notwith- 
standing this refusal, proceeded to form a treaty with a small 
portion of the nation for the cession of all their lands. 

This produced great excitement among the Creeks, who 
caused the two chiefs who signed the treaty to be executed for 
a violation of their laws. The treaty itself, which had been 
ratified by the President and Senate, without any knowledge 
of the circumstances under which it was executed, was after- 
wards declared void, as fraudulent. The state government, 
however, insisting on the treaty as valid, in order to prevent 
any collision between the federal and state authorities, the 
Creeks were induced to enter into a new treaty, by which their 
title to that part of their territory in the state of Georgia was 
extinguished. During the whole of this controversy, of which 
a more particular account will be found in the vol. of Annual 
Register for 1825-6, pages 42 and 343, and iu the next vol. 
page 85, the conduct of the general government, although de- 
nounced by the state, in a tone alike discreditable to its huma- 
nity and patriotism, was in conformity w ith both its express and 
implied obligations. 



1 1 

Hie Greeks being thus removed from the state, its attention 
was immediately directed towards the Cherokees. Tliis nation 
had been long distinguished for being in advance of the other 
Indian tribes in the arts of civilization. Some of their chief- 
tains have been really .ureal men, l'nll\ sensible of the di-;t<l- 
vantages of their condition, and sagacious in devising means 
to remedy them. Among these chieftains, the late Charles 
Hicks, and John Uoss, now at the head of the nation, were pre- 
eminent. Under their directing counsels, and aided by the po- 
licy of the general government, they have outstripped all the 
other tribes in the march of improvement* 

Advantageously situated in the northwest of Georgia, and 
extending themselves into Alabama and Tennessee, they oc- 
cupy a well watered and healthy country, conveniently divided 
into hill and dale. The northern part is even mountainous, 
but the southern anil western parts are composed of extensive 
and fertile plains, covered with the finest timber, and furnish- 
ing' excellent pasturage. The w inters are mild, and the cli- 
mate healthy. Large herds of cattle and horses are owned by 
the natives, and they are used to cultivating the earth. Nu- 
merous Hocks of goats, sheep and swine cover the hills. The 
valleys and plains furnish the best soil, and produce Indian 
corn, cotton, tobacco, wheat, oats, and potatoes. The natives 
carry on considerable trade with the adjoining states, and some 
of them carry their cotton down the Tennessee, and even down 
the Mississippi, to New-Orleans. Apple and peach orchards 
are very common, and much attention is paid to gardens in the 
nation. There are many public roads in the nation, and houses 
of entertainment kept by the natives. 

Numerous and nourishing villages art 1 to be seen in every 
section of the country. Cotton and woollen cloths and blan- 
kets are manufacturer! here. Almost every family raises cotton 
for its own consumption. Industry and commercial enterprise 
are extending themselves through the nation. Different me- 
chanical trades are pursued. 

The most important facts are, that the population is rapidly 
increasing, and that the female character is elevated and dill} 
respected. 

In 1810 the Cherokee s on this side of the Mississippi w en- 
estimated at 10,000. In 182.5 they amounted to 13,563, be- 
sides 220 whites, and 1 277 slaves. 

The religion of the nation is Christian — that religion w hich, 
wherever it reigns, whether in Kurope, Asia, Africa, or America, 
elevates its professors above those of other religions ; whether 
bKeving in the sensuality of Islamisiu; the self-denying ordinan- 
ces of Brama : or blindly worshipping, like the idolators of 



( "aliVaria and .Mexico, some visible representation of the princi- 
ple of evil. 

If there were no other indications given by this people 01 
their capacity of self improvement, there is a most striking one 
afforded in the alphabet invented by one of their native chief- 
tains, called Guess. Like Cadmus, he has given to his people 
the alphabet of their language. It is composed of eighty-six 
characters, so well adapted to the peculiar sounds of the Indian 
tongue, that Cherokees who had despaired of acquiring the 
requisite knowledge by means of the schools, are soon enabled 
to read, and correspond with each other. This invention is 
one of the great triumphs of the aboriginal intellect. Like the 
Greeks and the Latins, the Indians have now found a means 
of perpetuating the productions of mind. They have erected 
a barrier against the inroads cf oblivion. Henceforth their 
peculiar forms of expression, their combinations of thought, 
and the suggestions of their imaginations, will be preserved. 
An empire of intellect is founded on a stable foundation ; and 
when did such an empire experience a decline, till it had first 
attained the climax of human grandeur ? A printing press es- 
tablished in the nation issues a newspaper, periodically impart- 
ing information, both of domestic and foreign origin, through- 
out the tribe. 

Their political constitution affords another proof of their ca- 
pacity of self government. Republican in its character, its 
provisions are better calculated, as expressed in the preamble. 
k< to establish justice, insure tranquillity, promote the common 
welfare, and secure to ourselves and posterity the blessings of 
liberty," than many of the more elaborate contrivances of their 
European brethren. The government is representative in its 
form, and is divided into executive, legislative, and judicial 
departments. The trial by jury is established ; and the par- 
ticular provisions of the constitution, while they are calculated 
to accustom the Cherokees to the principles of our system ot 
jurisprudence, are peculiar^ well adapted to the anomalous 
condition in which the nation is placed. The whole is well 
suited to secure to the tribe the improvements already made, 
and to stimulate them to further advances in civilization. 

Such is the people, and such is their condition, as described 
in the report to congress from the present superintendent of 
Indian affairs, dated Dec. 13th, 1825, to whom the alternative 
is now proposed, either to remove beyond the Mississippi, or to 
be (Unfranchised upon the land which they have inherited from 
their ancestors, and which is guarantied by the plighted faith 
of the United States, " to them and their posterity for ever." 

Vpon this simple guaranty, contained in the treaty of Hols- 



ton; 15791, and repeated in that of Tellico, L798, the guettio i 
might be safely rested. 

The Indian might, and public opinion will, ask, how has the 
Cherokee nation forfeited the right to require the fulfilment of 
this pledge? Since the conclusion of these treaties, uninter- 
rupted peace lias prevailed with these tribe-. They have com- 
mitted no act of hostility. On the contrary, they have adhered 
to the United States as faithful and efficient allies, and when 
their blood has been shed in battle, it has been in the white 
man's cause. At the battle of Tallapoosee, by the intrepidity 
of some Cherokees, who swam the river and effected a landing 
in the face of the Creek fire, a portion of Gen. Jackson'> army, 
Col. Williams' regiment, was saved from destruction. In that 
battle, the loss of the Cherokees was nearly equal to that of 
the whites, and congress, by a resolution, afterwards acknow- 
ledged the efficiency of their services. 

Are these sacrifices to be repaid by denying the validity of 
their claim ? Or does the increase of the white population 
around them confer a right inconsistent with the enjoyment of 
their fair inheritance, cultivated by their labour, and maintained 
by their arms, united with those of the United States against 
the British and Creek allied forces during the last war. In 
what book of national or natural jurisprudence is this doctrine 
laid down ? Where is it to be found, that treaties are not of 
binding force, because it is convenient to one party to refuse 
compliance with their obligations ? 

These are the questions, which must be suggested, upon an 
examination of the novel position taken by the federal govern- 
ment towards the Cherokees. The plain and liberal stipulations 
of the treaties are not controverted. Their binding force at 
the time of making the compact with Georgia, is not disputed. 
The uniform and practical construction given to these stipula- 
tions by the Cherokees, and by every administration of the 
federal government, down to the accession of Gen. Jackson, is 
not denied. The acquiescence of Georgia, and its direct and 
positive assent to this construction, by an act of the legislature 
of June 16, 1802, by the proclamation of Gov. Troup, March. 
22d, 1S25, and by an act passed June 0th, 1825, are matters 
of history. Neither is it pretended, that the constitutional pro- 
vision, making treaties the supreme law of the land, is not still 
in force. 

A new position, however, is taken. The state of Georuia. 
resolves to extend its jurisdiction over the Cherokees, and the 
federal executive inform the Indians, that they cannot interfere 
with the exercise of the sovereign authority of a state, within it< 
own limits. This doctrine is reiterated by the subordinate 



14 



igi .us of the government; a board with the ostensible design of 
>enefitting the Indians, is got up in New-York ; letters pass be- 
tween this board and the superintendent of Indian affairs at 
\N ashington, expressing great sympathy for the unfortunate 
aborigines, and lamenting the inability of the general govern- 
ment to interfere in their behalf ; a dexterous appeal is made to 
the prejudices of the people, and they are led to believe that 
danger is to be apprehended to the integrity of the country, 
from the erection of an independent Indian state within the limits 
of one of the members of the confederacy; and lastly, but not 
least, an able and insidious essay on the subject, from the pen 
of a public agent of the government, well versed in Indian 
affairs, appears in the North American Review, and the influ- 
ence of its great authority/and the force of a most powerful, but 
a most unfair argument, is made to bear against this helpless 
and unprotected tribe. 

These positions deserve examination, and a cool and dispas- 
sionate consideration. To this they are entitled, and we are 
disposed to give it to them, without being at all moved by the 
fear of undue excitement being produced in the public mind, or 
of denunciations on the part of men already excited by what they 
term an impertinent interference in their concerns. 

This is not the concern of Georgia alone. It is the concern 
of the whole country; 1st, that its plighted faith shall be pre- 
served inviolate ; 2dly, that the supreme law of the land shall be 
carried into effect. It is the concern of the citizens of the Uni- 
ted States, that the powers, both of the general and the state 
governments, shall be maintained within their constitutional 
bounds, and no undue encroachment tolerated on either part. 

The present administration of the United States, assumes the 
ground that an interference with the state sovereignty would be 
unconstitutional, and this is also the ground taken by the author 
of the article in the North American Review. And why is not 
an interference on the part of the state government, with rights 
secured to the Indians by treaties, unconstitutional? When the 
claim of a state sovereignty clashes with the duties of the gene- 
ral government, which is paramount? Does not the federal con- 
stitution declare itself, and all treaties made pursuant to its 
provisions, to be the supreme law of the land? 

Where does Georgia find the right to set itself up above this 
plain and positive declaration, to which she so solemnly gave 
her sanction ? 

But the Reviewer inquires, (page 102,) and inquires as if the 
question must be answered affirmatively, what has a Cherokee 
to fear from the laws of Georgia ? conceding for the present the 
extraordinary principle advanced by this writer, that the Indians 



i 



are in ;i state of tutelage, and that the United States have tin 
sole right of determining upon the relations that shall exist be 
uveen both parties, and of making, construing, and annulling 
their treaties at pleasure, and to suit their own convenience, let 
ns examine this question, so fearlessly put, and see what a Chero- 
kee has to fear from these laws. First, the act of Georgia <>i 
December, 1828, deprives them of their territory without their 
consent, and in violation of the guaranty of the United States. 
Secondly, it disfranchises them, l>\ depriving them of the power 
to protect themselves, annulling and declaring void all their 
own laws and customs, and goes on to incapacitate them to ap- 
pear in the courts of Georgia, either as parties or witnesses. 
Thirdly, it repeals all the wholesome laws provided by them- 
selves, to restrain the vicious and to preserve good order in the 
nation ; annihilates the power of the Cherokee magistrates, by 
rendering it criminal for any chieftain to act under the authority 
of those laws; and it does not provide an\ substitute for the sys- 
tem thus abolished, nor any magistrates in the place of thosi 
thus superseded, but leaves this community without any legal 
restraint or legal protection, exposed to all the dangers which 
may arise from the absence of law, either from jke* lawless vio- 
lence among themselves, or on the part of the frontier settlers of 
Georgia, who may trespass with perfect impunity. 

Is there nothing fearful in all this ? To be reduced at once 
from the condition of a free citizen of an independent and or- 
derly community, to that of an outlaw on the soil inherited from 
his fathers ? To be dispossessed of his freehold and his coun- 
try ; to be rendered a vagabond, even w hile tilling the acres 
which his own hands have reduced to a state of cultivation : 
to be deprived of all legal protection, and exposed to public 
persecution and private indignity ? These are the changes to 
be effected as soon as " the net of Georgia legislation is sprung 
over him ;" and if the question of the right of extending state 
sovereignty over the Cherokees depends on the character of 
its legislation, there is in the nature of this law abundant proof 
of the violation of treaties. 

But the reviewer says that new pretensions are now advan- 
ced on the part of the Indian., and that the sovereignty of the 
state is violated by this erection of an Indian state within its 
limits. This assertion is incorrect. No new pretension is ad- 
vanced in the constitution adopted by the Cherokee nation, and 
the committee on Indian affairs, in their report to the Hou^se of 
Representatives, Feb. lSih, 1 829, say that they do mu per- 
ceive that it in any manner changes the relations ol the Chero- 
kees to the United States. In fact, it only renders orderly and 
legal that which was irregular and disorderly. It only accele- 



16 



rates the Improvement of the Cherokee nation as a civilized 
community. It is now no more independent than it was before 
the adoption of their constitution ; and the introduction of the 
principles of that instrument or code of laws among their cus- 
toms and domestic regulations, only tends to assimilate them to 
the whites who surround them, and to deprive them of those ha- 
bits which formerly rendered them dangerous neighbours. 

The reviewer, however, goes on — and this forms the main 
body of his very adroit and insidious argument — to assert that 
the condition of the Indians is daily growing worse ; that they 
are incapable of being civilized ; that their condition is one of 
tutelage, and that the superior intelligence should determine 
upon their fate without their consent, and even against their 
will ; that the states have necessarily the power of sovereignty 
as an inherent right over all persons within their limits. The 
proof he adduces is, that his intercourse with the Indians, 
which has been great, establishes the first and second positions. 
It must be observed, although the reviewer obviously wishes to 
produce a different impression, that his personal intercourse 
with the Indians has been confined to the north-western tribes, 
(page 70.) ''W'ith the southern tribes he has not had the same 
opportunities of personal observation. He however says, that 
" of the Creeks and Cherokees, however, we have some per- 
sonal knowledge, and so far as our personal intercourse with 
them has extended, they present to us the same external ap- 
pearance, and the same general traits of character, which else- 
where mark the race of red men." 

Whether the reviewer has ever been in the Creek or Chero- 
kee country, he does not inform us, and we take it for granted 
that he has not, but that his personal intercourse has been li- 
mited to an introduction to their delegations at Washington, 
and casual meetings with individuals of the tribes in other 
parts of the country. Yet with this limited knowledge, he 
presumes to decide upon their actual condition and ultimate 
fate. Nay more ; in the next page, (71,) he says, " we 
doubt whether there is upon the face of the globe a more wretched 
race than the Cherokees, as well as the other southern tribes at 
present. Many of them exhibit spectacles as disgusting as 
they are degrading." No evidence is adduced, upon which 
tliis sweeping denunciation is made, except the next following 
sentence. " Only three years since an appropriation was made 
by congress upon the representations of the authorities of Flo- 
rida, to relieve the Indians there from starvation." This is the 
proof upon which the reviewer relies for his doubts as to the 
condition of the Cherokees, and his assertions concerning the 
other southern tribes. This is the evidence he brings forward 



in the absence of all personal observation, to overthrow th< 
official statements of the superintendent of Indian affairs abov< 
quoted, as to their actual condition. What will the public thmfc 

of his candour and fairness, when we state as a lad, and one ol 

which the reviewer could not haw been ignorant, that these 
Florida Indians who were relieved by congress, were Senunolfes, 

who bad been removed from tlieir own lands, and who we,, 
reduced to that state of starvation from the inadequacy of tin? 
land assigned by the United States to maintain them. About 
the time alluded to, the governor of Florida, William 1*. Dtrvall, 
explored their country, with the view of ascertaining whether 
the complaints of the Seminoles concerning its barrenness were 
well founded, and an extract of his report to the Indian depart- 
ment, dated February 22d, 182G, furnishes the following descrip- 
tion of their territory : 

" I never have seen a more wretched tract of country, than that 
Which I entered five or six miles south of Chucuchatty — the sand 
hills rise very high, and the Indian trail winds over an extensive 
sand ridge for eight or nine miles ; the whole of the timber for 
this distance, as far as the eye can survey, has been killed by fire : 
the burnt and blackened pines, without a leaf, added to the 
dreary poverty of the land, presents the most miserable and 
gloomy prospect I ever beheld. — After descending the southern 
extremity of this ridge, I entered a low, wet, piney counti \ 
spotted with numerous ponds. So low was the whole countrx 
as far as the Indian boundary extended towards Tampa Baj . 
that, after riding all day and until eleven o'clock at night, in the 
hope I would find a dry spot to sleep upon, I was compelled to 
take up my lodging on a low wet place for the night. No set- 
tlement ever can be made in this region, and there is no land in 
it worth cultivation. The best of the Indian lands are worth 
but little; nineteen twentieths of their whole country within the 
present boundary, is by far the poorest and most miserable re- 
gion I ever beheld. I have therefore to advise, as my dutv 
demands, and the honour and humanity of my country require, 
that the Big Swamp be also given to the Indians, ami that the 
northern side be lixed five miles north of the Big Swamp, and 
extended to the Okelawaha river east, and so far west as to 
include the Big Haminoc." 

This was the cause of their distress ; and because congress was 
called upon to relieve their wants, brought upon them by tie 
act of the general government, an inference is drawn against al l 
the southern tribes; and they, forsooth, present a "most diseji-t 
ing and degrading spectacle.^ Jn the name of humanity, w< 
would ask if this is the mode in which these unfortunate n il"* 
are to be reasoned out of their rights : 



16 



The misery brought upon a portion of them by our own act, 
is to furnish an argument for the removal of all the tribes, and 
for their exposure to similar contingencies and similar privations, 
A portion of them are miserable and starving, and consequently 
the whole are doomed to ultimate destruction, and it is not worth 
while to interpose the national arm to stay the uplifted blow! 

The next position of the reviewer is, that the Indians are in 
a state of tutelage, and that the superior intelligence has the 
right to determine upon their fate. Frequent reference is made 
to a decision of the supreme court of New- York, and an act of 
the legislature of that state, passed 182?, is cited by him to 
establish that position. It is unnecessary here to go into a 
minute examination of the principles of that decision, or to 
compare, or rather to contrast, the conduct of that state with that 
of Georgia. A sufficient answer is to be found in the peculiar 
relations existing between the local government of New- York 
and the Indian tribes within her limits, anterior to the adoption 
of the federal constitution. 

These relations were those of dependence on the government 
of that state, as appears from the treaties between the tribes and 
the state government before referred to, and by the following 
extract from a report to the continental congress, May 1st, 1782. 

" 1st. It clearly appeared to your committee, that all the lands 
belonging to the Six Nations of Indians, and their tributaries, 
have been in due form put under the protection of the crown of 
England by the said Six Nations, as appendant to the late 
government of New-York, so far as respects jurisdiction only. 

" 2d. That the citizens of the said colony of New- York have 
borne the burthen, both as to blood and treasure, of protecting 
and supporting the said Six Nations of Indians, and their tribu- 
taries, for upwards of 1-00 years last past, as the dependents and 
allies of the said government. 

4 '3d. That the crown of England has always considered and 
i reated the country of the said Six Nations, and their tributaries, 
inhabiting as far as the 45th degree of north latitude, as appen- 
dant to the government of New- York. 

• 4th. That the neighbouring colonies of Massachusetts, 
Connecticut, Pennsylvania, Maryland, and Virginia, have also^ 
from time to time, by their public acts, recognised and admitted 
the said Six Nations, and their tributaries, to be appendant to 
i he government of New- York." 

These relations, which were peculiar to these Indians, confirm- 
ed as they were by the treaties before cited, in which the tribes 
eeded all their lands to the state of New- York, and took sub- 
irran ts from the state government seem to settle the whole question. 
The >tatr fro\ eminent by virtue of this dependence, and as para- 



ID 

mount sovereign, had a right, not only to pass a statute, assum- 
ing criminal, I >u t even civil jurisdiction* 

This, however, it did not do. It confined itself far within the 
limits of its power, and only exercised >o mnch as to preserve 
social order and quiet within the Indian reservations. 

The jurisprudence of that state, notwithstanding this act, 
does not adopt the principles advanced by this reviewer, and 
cited by him with such unqualified approbation. The doctrines 
laid down by the supreme court in the case of Jackson VS« 
Goodell, which are those cited by him to sustain his argument, 
are not the law of that state. They were solemnly reversed at 
the next term of the court for the correction of errors, and the 
learned and conclusive opinion of Chancellor Kent, establishing 
the opposite doctrines, was sanctioned by the whole court, con- 
sisting of thirty-four members, with but one dissenting voice. 
This fact is suppressed by this reviewer, and the public is left in 
. 4tf*ignorance, that the law of the state of New-York i-, "thai 
These tribes have never been regarded as citizens, or members of 
our body politic. They have always been, and are still con- 
sidered by our laws, as dependent tribes, governed by their own 
usages and chiefs, but placed under our protection, and subject 
to our coercion, so far as the public safety required it, and no 
farther." "The act of 1822 does not affect the question, 
whether the remainder of the Six Nations still rightfully exist as 
a separate people, or whether they have become incorporated 
into the body politic, as members and citizens. When the time 
shall arrive for us to break down the partition between us and 
them, and to annihilate the political existence of the Indians as 
nations and tribes, 1 trust we shall act fairly and explicitly, ami 
endeavour to effect it with the full knowledge and assent of the 
^ ylndians themselves, and with the most scrupulous regard to their 
* weaknesses and prejudices, and with the entire approbation of 
the government of the United States. I am satisfied that such 
a course would be required by prudence, and would become 
necessary, not only for conscience sake, but for the reputation of 
our national justice." (20 Johns. Hep. 111.) 

This is the law of New- York, as declared by Chancellor Kent, 
whose opinions are partially cited in this review, although the 
peculiar relations of that Stale with the Indians would justily it 
in going farther. No such relations twisted between the south- 
ern Indians and the government of Georgia. So far from being 
dependent, the state of Georgia, in the 7th year of its tndepen 
deuce, and anterior to the formation of the federal government, 
acknowledged by treaty the Cherokee tribe to be a nation, and 
it was not until the whole subject w as confided to the general 
government, that the 9tat€ of Georgia fell itself safe from tli« 



20 



threatening aspecl assumed by these tribes, then in a state of war. 
ind spurning all dependence. 

These positions having been shown to be untenable — the 
Cherokees being far more civilized than the north western In- 
dians, and evincing a greater capacity for self improvement; not 
growing worse, but actually advancing both in numbers and 
knowledge — not acknowledging themselves to be in a state of 
tutelage, but with their rights and obligations clearly defined by 
treaties with the general government, and not modified by any 
peculiar relations contracted with the state of Georgia at any 
previous moment, the only ground remaining to examine, is the 
apprehended danger to state sovereignty. 

These dangers to state sovereignty form a most convenient 
plea, whenever every other pretence seems to fail. Is the coun- 
try to be rendered defenceless in the very presence of a powerful 
and exasperated foe; the sovereignty of the states, furnishes both 
the pretext and the means to thwart the exertions of the natiorftl% 
government for the public defence. Is a plan devised to deve- 
lope the resources of the country, to improve its navigable rivers, 
to connect distant parts of the Union, by the bonds of mutual 
interest in facilitating the exchange of their respective produc- 
tions : the cry of danger to state sovereignties is raised, and the 
beneficent spirit of internal improvement is at once arrested in 
mid career. 

Does a revenue law bear with peculiar severity upon any 
I (articular section of the Union ? The constitution is again viola- 
ted, and the state governments are invoked to step forth to 
protect their interests by a direct interference with the laws of 
the Union. Does a treaty guaranty to the Indians territory 
within the limits of a state — its sovereignty is endangered by this 
guaranty, and its power must be exercised tojt direct and posi--d 
tive violation of national faith. In what are\hese pretensions 
to end ? If there is no other restraint than that imposed by the 
moderation and discretion of the state authorities, the integrity 
of the Union cannot be maintained. Its bonds are as weak as 
ropes of sand, to be severed whenever sectional prejudices and 
interests drive violent and lawless men into collision with the 
general government. 

Is this, in truth, our condition, that our character as a people 
cannot be preserved — that our solemnly plighted national faith 
cannol be redeemed — that our constitutional laws and obliga- 
tion- < annot lie enforced ? This is, indeed, a solemn and mo- 
mentous question. On one side is a direct, and perhaps a forci- 
ble collision of the federal with a state government; but on the 
other there is a virtual dissolution of the federal compact. An 
execution of the laws of the Union by force, is an event to be 

BB 12-8 ^ 



21 



contemplated with feelings ofthe deepest awe, and with great 
apprehensions as to the ultimate result ; but one open and bug- 
' cessful violation of those laws, one positive defiance of the obli- 
gations impo>ed by tin* federal < on>titution, on tin* part of 0 

i state, presents an example pregnant with consequences still 
] more disastrous. Let this bond of union be thus impaired and 
I set at nought, and anarchy at one- usurps the plat e of constitu- 
I tional order. The law of the strongest will be substituted in 
place of the constitution, and the weaker states will lie at the 
mercy of the larger and more powerful. To avert this State of 
| confusion — to preserve the whole Union from that anarchy 
i which must ensue from each of its members enforcing its o#n 
j claims, the federal constitution, and all treaties made under it, 
J; were made the supreme law of the land. The neecs>ar\ power 
to enforce that law is intrusted to the President of the United 
States, and he is hound by every obligation of patriotism, by 
ill that he owes to the confidence reposed in him by his fellow 
j citizens, enforced by the solemn sanction of an oath, " to main- 
I tain, protect, and defend, to the best of his ability," the consti* 
; tutional powers of the federal government 

He may still be spared this painful alternative, by forbearance 
| and moderation on the part of Georgia. By acting towards 
the Cherokees according to the dictates of a generous policy, 
i, all practical difficulties may be avoided. If suffered to continue 
undisturbed upon their lands, the progress of civilization and 
the increase of knowledge will, in the lapse of a few years, mo- 
dify their customs, and lit them for an amalgamation with the 
white population. This is the object of their ardent wishes, 
which, in conformity with the long-settled policy of the United 
States, they have been earnestly striving to attain. Their desires 
on this point have been distinctly stated to the government, and 
if they are Suffered to realize them, a practical volution will he 
given to all the intricacies and difficulties now presented by thi< 
, question. 

But if this amicable adjustment of the matter shall not take 
place, and the state of Georgia, governed by a spirit of grasping 
avarice, and insensible to all considerations of humanity, na- 
, tional faith, and federal allegiance, shall proceed to execute her 
designs in defiance of the supreme laws of die land, we trust that 

the President of the United States will fearlessly perform his 
duty, and save the republic from the lasting reproach of viola- 
ting the faith of treaties 



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